Federal Communications Commission (FCC)

Experts doubt the partial federal shutdown and looming threat of another will mean more worker turnover in coming months at the FCC and other agencies. That's especially among professionals ranks such as engineers and lawyers. Others are less sure.

Federal judges pressed both sides on the FCC's net neutrality rollback case in oral argument (audio) at the U.S. Court of Appeals for the District of Columbia Circuit Friday. It ran almost four-and-a-half hours, almost twice what was scheduled, plus a break. All three judges questioned challenger contentions the FCC erred in reclassifying broadband internet access as a Communications Act Title I information service, particularly given Chevron deference to reasonable agency decisions on ambiguous statutes, including 2005 Brand X affirmation of Title I cable modem service. Two judges questioned FCC decisions, including to scrap net neutrality rules -- particularly for public safety operations -- pre-empt state and local governments, and use Section 257 authority for transparency rules.

Net neutrality advocates voiced confidence in their case against the FCC's order reversing broadband common-carrier regulation, with some optimistic it will be overturned. They said Wednesday the net neutrality rollback under a reclassified Communications Act Title I broadband regime was unjustified legally and bad policy that would unleash ISP "gatekeepers" to throttle and discriminate, harming consumers and competition. Petitioners and intervenors challenging the order held two media calls ahead of Friday's oral argument before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in Mozilla v. FCC (see 1901230060). It's case 18-1051.

Groups led by Public Knowledge asked the FCC to reconsider a 3-1 decision in December clarifying text messages are a lightly regulated Communications Act Title I service (see 1812120043). The order’s reasoning “is fallacious and fails to support its outcome,” the petition said. “Events since the order was issued confirm the need for the Commission to reconsider its action -- specifically, controversies concerning the privacy of customer location data and whether carriers will hinder the ability of schools and teachers to use third-party tools to stay in touch with students and parents.” The Benton Foundation, Common Cause, Consumer Federation of America, Greenlining Institute, National Digital Inclusion Alliance, Open Technology Institute and The Utility Reform Network were among signers, in docket 08-7. The FCC didn't comment.

The full federal government got back to work Monday, after a prolonged partial shutdown that shuttered the FCC, FTC, NTIA and other agencies overseeing communications policy. Incoming FCC Commissioner Geoffrey Starks will be sworn in Wednesday by Chairman Ajit Pai in an eighth-floor conference room and will participate in the commissioners’ meeting that follows, said industry officials. President Donald Trump signed off Friday on a continuing resolution to reopen the FCC and other shuttered agencies through Feb. 15, after the House passed the measure as expected (see 1901240016).

CTIA supports the FCC at the U.S. Court of Appeals for the D.C. Circuit in the case challenging the March wireless infrastructure order, Keetoowah Band v. FCC, No. 18-1129. “Actions in the Order serve as a long overdue recognition that its prior environmental review regulations are out of step with the manner in which modern wireless facilities are deployed,” CTIA replied (in Pacer) Friday. “The agency’s decisions in the Order are thus completely reasonable, if not required.” To get to a 5G world, “wireless carriers will need to deploy approximately 300,000 small cells in the next few years,” CTIA said, saying small cells don’t raise the same review issues as macro towers. The Natural Resources Defense Council countered that the FCC made two errors. The agency “overlooks the additional responsibilities that the National Environmental Policy Act imposes on it independent from the Commission’s obligations under the Communications Act,” NRDC said (in Pacer). "The FCC also overlooks the continuing federal role it plays in overseeing the conduct of those it licenses to provide wireless service.”

Media deals making their way through federal court -- AT&T/Time Warner at the U.S. Court of Appeals for the D.C. Circuit and Disney/Fox at U.S. District Court in Manhattan -- shouldn't face a delay in judicial action due to the partial federal shutdown, antitrust and law experts told us. The month-long shutdown also isn’t seen having much effect on broadcast deals, analysts and attorneys told us.

The FCC is continuing to prepare for the 24 GHz auction and future auctions, including pushing forward on the C band and other bands being looked at for 5G. The 28 GHz auction closed Thursday. Nevertheless, the agency remains constrained in how much staff can do as the longest shutdown in federal history continues. “Staff continues to work on future auctions,” a spokesperson emailed Thursday.

The shutdown is having immediate FCC consequences in the form of delayed filing deadlines and shuttered websites. It could also ripple out to delay expected rule changes for 2019, industry officials told us this week. Since staff isn’t available, expected early-2019 policy decisions on kidvid and rate regulation, court cases and progress of deals such as T-Mobile buying Sprint are considered likely to be delayed.

Expect Senate and House Commerce Committee hearings on wireless carrier location tracking practices that stirred national security concerns, lawmakers told us. Senate Intelligence Committee ranking member Mark Warner, D-Va., wants briefings from carriers on recent reports companies sold customer location tracking data allegedly accessed by bounty hunters (see 1901110042). “I want to hear personally not only from folks on the communications side but also continue hearing if there are any national security implications,” Warner told us.